Ashwell v. United States Seed Co.

Decision Date02 February 1943
Docket NumberNo. 26280.,26280.
Citation167 S.W.2d 950
PartiesASHWELL et al. v. UNITED STATES SEED CO. et al.
CourtMissouri Court of Appeals

Appeal from City of St. Louis Circuit Court; William L. Mason, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Clifford W. Ashwell and Elsie A. Ashwell, alleged dependents, to recover for death of Albert T. Ashwell, employee, opposed by the United States Seed Company, employer, and Aetna Casualty & Surety Company, insurer. From a judgment reversing and remanding for rehearing the final award of the Workmen's Compensation Commission denying alleged dependents' claim for compensation as partial dependents, the employer and insurer appeal.

Reversed and remanded with directions.

Luke & Cunliff, of St. Louis, for appellants.

Alroy S. Phillips, of St. Louis, and Joseph T. Tate, of Owensville, for respondents.

HUGHES, Presiding Judge.

This appeal is from the judgment of the circuit court reversing and remanding for rehearing a final award of the Missouri Workmen's Compensation Commission denying respondents' claim for compensation as partial dependents of Albert T. Ashwell, father of respondent Clifford W. Ashwell, and awarding the $150 burial benefit to respondent Clifford W. Ashwell and his brother, Albert G. Ashwell. Respondent Elsie A. Ashwell is the wife of Clifford W. Ashwell; they were married February 5, 1938, and thereafter lived in the home of Clifford's father, Albert T. Ashwell, until December 11, 1939, when they moved into their own home. While living with the father Clifford paid for the groceries and his wife "kept the house in shape," the father paying all other bills.

In June, 1939, Albert T. Ashwell gave Clifford a lot of the value of $1,200 out of a larger tract of land belonging to him, and Clifford built a home on the lot at a cost of $5,180.75, of which cost he paid in cash $580.75 and financed the balance $4,600 by a deed of trust dated January 2, 1940, bearing interest at five percent, payable semi-annually. Clifford had intended to build a four room house, but at his father's suggestion changed his plans and added another room in order to have sufficient room for the father to live with him. Before moving into the new home Clifford and his father estimated that the additional cost of the father's keep for "food and other such items" would be $4 per week, and, according to Clifford's testimony, to defray the cost of this and help him with his other expenses the father regularly made payments to Clifford each week aggregating $30 per month, until the father's death, less $5 in July, 1940, which was the estimated cost of his father's meals for eight days that Clifford and his wife were away from home on a trip. Clifford's testimony as to the payments of $30 a month was that it was the understanding that the extra cost of food and things of that sort was $4 a week, and that his father stated that because of the extra trouble it caused of his coming to the home, and extra cost of building the house, that he would contribute $30 a month. And further said, "I completed the arrangement with him prior to my building this new home, that I would put it up with the five rooms and that he would then come and live there and pay me $30.00 per month." In December, 1940, Clifford had interest, insurance, doctor and hospital bills coming due, and his father gave him $300. In the year preceding his death the father also, of his own volition, bought a wheelbarrow, hose connection, garden seed, tomato plants and various other things for the household of which no account was kept, and on three occasions gave Clifford's wife $10 to spend for anything she wanted. Not only Clifford's father but also his wife's father gave them money at different times by way of presents.

Clifford W. Ashwell was thirty years old, weighed 188 pounds stripped, with no physical disabilities, and as he testified, was "a good physical specimen." He was a Missouri State Highway Patrolman and was paid a salary of $145 per month, or $1,740 per year, and at the time of the hearing was an employee of the State Liquor Department at a salary of $180 per month.

On March 21, 1941, Albert T. Ashwell died as a result of an accident arising out of and in the course of his employment with appellant United States Seed Company. Both the employer and the employee had elected to accept the provisions of the Workmen's Compensation Act, and the employer's liability thereunder was insured by the appellant Aetna Casualty & Surety Company. It was admitted that the employer had received due notice of the accident and that the claim was duly filed and nothing had been paid thereon, and that the employee's average wages were $25 a week.

There were no witnesses at the hearing other than claimants, and Albert G. Ashwell, a brother of Clifford. Albert testified that he had seen his father, on various week-ends, give his brother and sister-in-law money, which he assumed was toward his board or upkeep, and he knew his father had given Clifford money which was applied as a payment on the house. That after they moved to the new house he vouched the information to his father and brother that when the father lived with him the cost of his maintenance ran approximately $4 a week.

Clifford identified an itemized list he had prepared of his expenditures during the year preceding his father's death, showing a total of $2,171.24, to which we will later refer.

The sole issue is whether the claimants were dependents of the deceased employee, within the meaning of the Workmen's Compensation Law. The Commission having determined that question in the negative, on appeal the court should consider only the evidence most favorable to support the finding and award of the Commission, together with all reasonable inferences to be drawn therefrom, and disregard any unfavorable evidence. This has been held by the courts in many cases, some of which are: Gessler v. Liggett & Myers Tobacco Co., Mo.App., 54 S.W.2d 806; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Cobler v. Leonhard Confectionery Co., Mo.App., 138 S.W.2d 728; Conn v. Chestnut Street Realty Co., 235 Mo.App. 309, 133 S.W.2d 1056; Kemmerling v. Karl Koch Erecting Co., 338 Mo. 252, 89 S.W.2d 674.

The respondents do not question this guiding principle of law, but they argue that it is no aid to appellants in this case, because they say the appellants offered no evidence, and therefore the facts are undisputed and there is no conflict in the evidence, and consequently the fact of dependency in this case is a question of law. Whether the claimants herein were dependents of Albert T. Ashwell must be determined with reference to Section 3709, R. S.1939, Subdivision (d), Mo.R.S.A. § 3709 (d), which defines a dependent as a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his wages at the time of the injury. The section then provides that the following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee in the following order, (1) a wife upon a husband legally liable for her support; (2) a child under the age of eighteen years, or over that age if physically or mentally incapacitated from wage earning. In all other cases questions of total or partial dependency shall be determined in accordance with the facts at the time of the injury.

Under the specific provision of this Statute where the claimant is admittedly a child under eighteen years of age, or over that age if physically or mentally incapacitated from wage earning, then in such case such child, as a matter of law, is presumed to be a dependent of his father. Of course that is not the situation in this case, where it is conceded that Clifford W. Ashwell is an adult and is a good physical specimen, capable of holding and is holding the very...

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